Schussheim v Snitkoff

[*1] Schussheim v Snitkoff 2014 NY Slip Op 50787(U) Decided on April 30, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ.
2012-2553 N C

Cheryl Schussheim, as Executrix of the Estate of Shirley Schussheim, Deceased, Appellant,

against

Richard Snitkoff Doing Business as J & R Transporting and Able Salvage Corp., Respondents.

Appeal from a judgment of the District Court of Nassau County, Second District (Eugene H. Shifrin, Ct. Atty. Ref.), entered January 5, 2012. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is modified by vacating the dismissal of so much of the action as was asserted against defendant Able Salvage Corp. and the matter is remitted to the District Court for a new trial thereon, before a judge or different court attorney referee, limited to the issue of damages; as so modified, the judgment is affirmed, without costs.

In this small claims action, Cheryl Schussheim (plaintiff), as executrix of the estate of her mother, Shirley Schussheim, deceased, seeks to recover the principal sum of $5,000. At a nonjury trial, plaintiff recounted that the decedent had, during the course of her life, previously donated used vehicles to the Hebrew Free Burial Society (the Society) and that, towards the end of the decedent's life, plaintiff had assisted the decedent in attempting to donate her 1993 Grand Cherokee Jeep (the vehicle) to the Society. To that end, in 2010, plaintiff telephoned the Society to notify it of the intended charitable donation. Defendant Richard Snitkoff, of J & R Transporting, apparently went to the decedent's house at the Society's request, to facilitate the transfer. Upon learning that the decedent had misplaced the title to the vehicle, Snitkoff gave the decedent a blank Form MV-35, promulgated by the New York State Motor Vehicles Department. Snitkoff returned to the decedent's house at a subsequent date, but was unable to remove the vehicle. The vice-president of defendant Able Salvage Corp., Nick Vlahakis, testified that, thereafter, pursuant to instructions he had received from J & R Transporting and from plaintiff, he had gone to the decedent's house and had removed the vehicle. Vlahakis stated that he had thereafter "junked" the vehicle and had kept the proceeds he received for it as compensation for his services. Vlahakis testified that he could not remember how much money he had been paid, but that it had been less than $500.

Plaintiff introduced into evidence a receipt she had received from Vlahakis, which showed that the vehicle had been collected "for Rich J & R Transporting." She testified that she had believed that Vlahakis and Able Salvage Corp. had been acting on behalf of J & R Transporting and had collected the vehicle in order to facilitate its donation to the Society, and that she had only learned otherwise when, upon consulting with the estate's accountant, she realized that the estate had never received a receipt for the decedent's ostensible charitable donation of the vehicle. Although Vlahakis testified that, based on the nomenclature on defendant Able Salvage Corp.'s vehicle, plaintiff and the decedent should have been aware that they were turning the vehicle over for salvage, plaintiff unequivocally denied that either she or decedent would have turned the vehicle over to defendant Able Salvage Corp. if they had understood that they were "giving" it to that defendant in exchange for his services in "junking" the vehicle. Plaintiff further stated that, prior to the trial, upon attempting to ascertain the value of the vehicle, she had learned that, because of its age, it had no "book value," and that its monetary value could not be determined without an assessment of its physical condition. Defendant Snitkoff testified that, had the vehicle been in perfect driving condition, it would have been worth $1,000. Vlahakis said that "junked" cars are valued based on their weight.

The MV-35 form, which the decedent had signed in connection with her intended transfer of the vehicle, was entirely blank, apart from printed language on the form and the decedent's signature. Printed statements on the form advised the signator, among other things, that the form was for use by vehicle owners who either had never obtained title in their own name or had lost the title to their vehicles, that the form was only to be used on vehicles worth $1,250 or less and at least eight model years old, that it was intended to be used to transfer vehicles to registered vehicle dismantlers, itinerant vehicle collectors, or certified scrap processors, and that the form could not be used to transfer ownership of vehicles to a charitable organization. However, even if, by her signature on the blank MV-35 form, there could be inferred an intent on the part of the decedent to transfer the vehicle to a registered vehicle dismantler, itinerant vehicle collector, or certified scrap processor, any intent to transfer ownership of the vehicle or the proceeds of the salvage to defendant Able Salvage Corp. was belied by that defendant's receipt, dated August 6, 2010, on which defendant Able Salvage Corp. stated that it had "picked up" the vehicle "for Rich J & R Transporting." We construe that language to constitute an admission that defendant Able Salvage Corp. had no ownership interest in the vehicle, and rather had accepted it only on behalf of Snitkoff and J & R Transporting. The record demonstrates that plaintiff and the decedent had reasonably understood Snitkoff and J & R Transporting to be acting as representatives of the Society, and had turned the vehicle over to defendant Able Salvage Corp. in furtherance of the decedent's intended donation of the vehicle to the Society.

In view of the foregoing, by virtue of its "junking" of the vehicle and retention of the proceeds therefrom, defendant Able Salvage Corp. is liable to the estate for conversion. We thus conclude that a new trial is required as against defendant Able Salvage Corp. to determine the amount of damages sustained. However, as there was no evidence that defendant Richard Snitkoff, doing business as J & R Transporting, interfered with plaintiff's possessory or ownership interest in the vehicle, we find that the District Court properly dismissed the action insofar as it was asserted against him.

We do not consider any arguments made for the first time on appeal.

Accordingly, the judgment is modified by vacating the dismissal of so much of the action as was asserted against defendant Able Salvage Corp. and the matter is remitted to the District Court for a new trial, before a judge or different court attorney referee, limited to the issue of damages on plaintiff's cause of action against that defendant; as so modified, the judgment is affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.

Decision Date: April 30, 2014